ROXY Jacenko gave the courtroom a wide berth during her husband Oliver Curtis’ criminal appeal today.

While Curtis’ parents sat in court as barrister Bret Walker SC argued for the former investment banker’s white-collar conviction to be overturned, there was no sign of the glamorous publicist who made headlines during his trial.

Curtis appeared via videolink from jail, where he cut a lonely figure as he sat at a desk with folded hands, at times shuffling papers around in front of him.

Mr Walker argued that the Crown had not proven the charge of conspiracy to commit insider trading because it did not establish the “materiality” of the information passed to Curtis by his co-accused.

Curtis is serving a one-year jail sentence after a jury found him guilty in June over an illicit scheme hatched in 2007 with former St Ignatius College school mate John Hartman, which the jury heard had netted the pair $1.4 million.

Curtis’ appeal centres on the question of whether the agreement between the pair, under which Hartman would pass information to Curtis about the trading intentions of his employer Orion Asset Management, “would” — as opposed to “may” — result in the commission of an offence.

Mr Walker, one of Australia’s top barristers, argued that the Crown had not made out its case because it could not be established that the information Hartman was to pass on met the legal definition of inside information as price-sensitive information that is not generally available but, if it were freely available, might have a “material effect” on the price or value of financial products.

He said that even if a person believed they were receiving inside information, this in itself did not mean they were committing the offence of conspiracy, “regardless of the wickedness in his or her heart”.

“You may be wicked but it’s not an offence,” Mr Walker said.

Appearing for the Crown, Wendy Abraham QC said this was not a case that rested on recklessness as to whether information was sensitive, but a clear agreement for information to be passed on that was not readily available to the market.

“The agreement was very clear that it was based on inside information with certain characteristics, and that Mr Hartman procured [Curtis] to act as he did,” Ms Abraham said.

She said it was possible to be guilty of conspiracy to commit an offence even if the crime itself was impossible, giving the example of conspiracy to possess cocaine where the substance was, in fact, sugar.

Mr Walker rejected this analogy, saying his client’s case was “crystal clear” about the fact that the Crown was not obliged to prove the offence of insider trading itself in order to make out the conspiracy charge.

Rather, he said, the relevant question was whether an agreement existed that “if it’s performed according to its terms, will that performance constitute the commission of an offence?”

In her sentencing remarks, Justice McCallum said Curtis and Hartman were both active participants in the scheme and that personal gain was “plainly” the motive for their operation, noting that is profits “were used to fund a lifestyle of conspicuous extravagance”.

Jacenko had put on a brave face during the 12-day trial, posting daily images of her designer courtroom attire to Instagram, including Birkin handbags and thousands of dollars worth of jewellery.